Pan Pharmaceuticals Limited (In Liquidation) ACN 091032 914

[2007] FCA 1016

FEDERAL COURT OF AUSTRALIA

Pan Pharmaceuticals Limited (In Liquidation) ACN 091 032 914
[2007] FCA 1016

Federal Court (Corporations) Regulation 2001, r 11.10(2)

ANTHONY MCGRATH AND CHRISTOPHER HONEY in their capacity as liquidators of PAN PHARMACEUTICALS LIMITED (IN LIQUIDATION)
ACN 091 032 914

NSD691 OF 2007

EMMETT J
28 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD691 OF 2007

IN THE MATTER OF PAN PHARMACEUTICALS LIMITED (IN LIQUIDATION)
ACN 091 032 914

ANTHONY MCGRATH AND CHRISTOPHER HONEY in their capacity as liquidators of PAN PHARMACEUTICALS LIMITED (IN LIQUIDATION) ACN 091 032 914 Applicants
JUDGE:	EMMETT J
DATE OF ORDER:	28 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to Rule 11.10(2) of the Federal Court (Corporations Regulations) 2001, a warrant issue addressed to the Sheriff to arrest Salim Issa (Sam Issa) and to bring him before the Court to be examined under s 596B of the Corporations Act 2001 (Cth) on oath or affirmation about the examinable affairs of Pan Pharmaceuticals Limited (In Liquidation) ACN 091 032 914.

2.The warrant lie in the Federal Court registry until Monday 4 June 2007 at 4.00 pm.

3.Notice of this order be provided to Mr Issa as follows:

(a)By delivering a copy of this order to 122 Chetwynd Road, Merrylands in the state of New South Wales by 29 May 2007 at 4.00 pm.

(b)By sending the following SMS message to mobile numbers 0404 055 188 and 0420 367 267 by 29 May 2007 at 4.00pm:

“Sam Issa, orders have been made on 28 May 2007 to issue a warrant for your arrest to be examined about the affairs of Pan Pharmaceuticals Limited (In Liq).  You have until 4 June 2007 at 4.00pm to apply to the Federal Court, Law Courts Building Sydney, to have this order discharged before the warrant will be executed.  Alternatively, please contact BDW on 9258 6305.”

4.Mr Issa have liberty to apply, on 24 hours’ notice to the applicants, for order 1 to be discharged.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD691 OF 2007

IN THE MATTER OF PAN PHARMACEUTICALS LIMITED (IN LIQUIDATION)
ACN 091 032 914

ANTHONY MCGRATH AND CHRISTOPHER HONEY in their capacity as liquidators of PAN PHARMACEUTICALS LIMITED (IN LIQUIDATION) ACN 091 032 914 Applicants
JUDGE:	EMMETT J
DATE:	28 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application by the liquidators of Pan Pharmaceuticals Limited (the Company) for an order under Rule 11.10(2) of the Federal Court (Corporations) Regulations 2001.  This rule applies if a person is summoned or ordered by the Court to attend for examination, and without reasonable cause, the person fails to attend.  Where the rule applies, the Court may issue a warrant for the arrest of the person summoned and may make other orders that the Court thinks just or necessary.

2. Attempts were made on behalf of the liquidators to serve Mr Salim Issa with a summons for public examination.  After unsuccessful attempts to find Mr Issa, an order was made on 2 May 2007 requiring Mr Issa to produce documents in his possession relating to his work in the manufacture of products and operations of the Company.  On 16 May 2007, the Court made an order providing for substituted service of that order.  That order required attendance before the court on 25 May.  Mr Issa did not appear.

3. In 1999, Mr Issa acquired an interest in a property known as 122 Chetwynd Road, Merrylands, New South Wales.  However, in 2005 he transferred his interest to Saida Issa.  The liquidators or their agents have been furnished with two mobile telephone numbers by persons apparently resident at 122 Chetwynd Road, Merrylands.  Those numbers were given as the numbers of Mr Issa.  Attempts to communicate with Mr Issa at those numbers have been unsuccessful, despite messages being left through a message bank attached to those numbers, informing Mr Issa of the Court’s requirements for him to attend for examination.

4. I have seen evidence from Ms Fiona Willis-Jones, a process server, of attempts made to communicate with Mr Issa at Chetwynd Road, Merrylands.  The most significant is a telephone conversation with a female, whom Ms Willis-Jones believes to be Mr Issa’s daughter.  Ms Willis-Jones said, “Good morning.  I was wondering whether I could speak to Mr Salim or Sam Issa, please?”  The female said, “I’m sorry.  He’s not at home at the moment.  May I ask who is calling?”  When Ms Willis-Jones said that she was calling on behalf of the Company.  The response was that she had the wrong number.  Ms Willis-Jones said, “I’ve rung the correct number.  I believe I’m looking for your father, Mr Salim Issa, who also goes by the name of Sam Issa.”  The female then hung up.  Thereafter, attempts to telephone the number were automatically diverted to a message bank.

5. Those events took place on 21 May 2007.  On the same day, Ms Willis-Jones telephoned what she believed to be the number of a neighbouring property and said that she was trying to get in touch with Mr Salim Issa next door, and was wondering whether he still lived there.  The female who answered the phone was uncooperative and refused to give any information, other than to say she would “tell them about this”.

6. Documents have been left at the address 122 Chetwynd Road, Merrylands, unequivocally informing Mr Issa of the requirement that he attend to be examined.  Some documents were returned, marked “Wrong Address”.  Another attempt at telephoning the number of 122 Chetwynd Road received the response, “My father doesn’t live here any more.  My parents divorced three years ago.” 

7. It is by no means certain that Mr Issa still resides at the property.  A surveillance conducted on 26 May 2007 gave rise to no evidence of the presence of Mr Issa, although an older and younger female emerged from and entered the house on several occasions during the surveillance from 7 am to 12 pm and from 4.20 pm to 5.30 pm.

8. Having regard to the communications which I have briefly summarised, there is at least an inference capable of being drawn that Mr Issa still has a connection with the property, and it is more likely than not that he has become aware of the Court’s requirement for him to attend for examination.  In the circumstances, I am prepared to make an order for the issue of a warrant for his arrest to be brought before the Court for the purposes of the examination.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        12 July 2007

Counsel for the Applicants:	J Sheahan SC with S Nixon
Solicitor for the Applicants:	Blake Dawson Waldron
The Respondent did not appear.
Date of Hearing:	28 May 2007
Date of Judgment:	28 May 2007